Citation Nr: 18102657
Decision Date: 05/16/18 Archive Date: 05/16/18
DOCKET NO. 13-32 668
DATE: May 16, 2018
REMANDED ISSUE
Entitlement to service connection for lymphoephithelial carcinoma of the neck and base of tongue is remanded.
The Veteran had active service in the U.S. Army from March 1975 to May 1978 and from June 1980 to March 2007.
Although the Board regrets the additional delay, remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).
VA sought a specialist medical opinion regarding the etiology of the Veteran’s condition. In the November 2017 report, the examiner opined that there were no specific studies evaluating the connection of burn pit exposures and the development of head and neck cancers. Further, the examiner noted that while the Veteran did not possess the traditional risk factors for the type of cancer he possessed, the most likely explanation was that it is related to human papilloma virus (HPV). Specifically, the examiner referenced the November 2010 laryngoscopy pathology which was not checked for HPV/p16 as would have been the case back then, but is standard practice today. As such, the examiner indicated that if the original tumor specimen could be tested for HPV/p16, a more definitive answer would ensue as he opined it is most certainly the causative factor. As the specimen is potentially procurable data to provide a more definitive etiology opinion, the Board finds that remand is necessary. See Jones (Michael) v. Shinseki, 23 Vet. App. 382, 390 (2010) (examination opinion should clarify whether inability to come to conclusion was based on all “procurable and assembled data.” and/or the whether the inability to provide a definitive opinion was due to a need for further information or because the limits of medical knowledge had been exhausted regarding the etiology of the disorder).
Accordingly, the case is remanded for action consistent with the forestated reasons.
The matter is REMANDED for the following action:
1. Associate with the claims file any additional VA and private treatment records.
2. Attempt to have the November 2010 original tumor specimen retested for HPV/p16 to determine the etiology of his neck and tongue cancer.
If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).
3. After completion of the above, and any additional development deemed appropriate, the AOJ should readjudicate the remanded issue(s). If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response, the appeal must be returned to the Board for appellate review.
T. MAINELLI
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel